Criminal Law Class Notes 9/2/03


Today, we’re finishing up the tools of criminal law.




Banks claims that the “Peeping Tom” statute is overly broad, and thus it is [un]constitutional [fixed typo 10/7/03 ed.].  What he means by that is that some of the conduct prohibited is legitimately bad, but some of it is entirely innocent conduct.


Banks also argues that the statute is unduly vague.


Even if we didn’t have the Due Process clause in the Constitution, the common law requires statutes to be sufficiently definite.  It’s of little value to have a statute on the books in advance if, in reading the statute, you couldn’t figure out just what it was you weren’t supposed to do.


The Supreme Court held that a statute must be sufficiently definite, but it doesn’t require absolute precision.  There must be some sense of a “line” that you’re not allowed to cross.


The court presumes that the statute is constitutional.  The burden is upon the defendant to prove that a statute is invalid.


The court says that statutes must be strictly construed.  This is equivalent to the doctrine of lenity.  We give the benefit of the doubt to the defendant.


The court also claims that the intent of the legislature must be taken into account when the statute is interpreted.


The court says that if a statute is clear, you just do what it says.  If it’s ambiguous, you look at legislative intent:


-         Read the statute carefully.

-         Read the preamble of the statute.

-         Read the title.

-         Look at legislative history.

-         Look at common law.

-         Look at precedent cases.


The “Peeping Tom” statute


The statute’s language is gender-specific as far as the victim.  That may speak to the wisdom of the statute, but not to the clarity of the statute.


It looks like the court “redrafts” the statute such that in some situations a defendant will be found not guilty when under the language of the statute they would have been found guilty.


Say a burglar is peeping into a house to look for stuff to steal or to see if anyone is home and there’s a woman in the house.  Can the burglar be charged with peeping under the original statute?  Sure.  But not under the judicial interpretation of the statute.


Or say for example you’re looking at a man but coincidentally there’s a woman in the room.  Under the original statute, you would be found guilty, but under the judicial interpretation, you would be found not guilty.


Also, keep in mind that once the state Supreme Court has changed the statute through its interpretation, we expect that everyone who is subject to the statute will be on notice that it has changed.  This is a clear cut legal fiction.


What about the phrase “legitimate expectation of privacy”?


Say you’re walking down the street, and there’s a house where the blinds are open and there’s a woman undressing.  Say she just forgot her blinds were open.  Say also that you intent to violate her privacy.  Did that woman have a legitimate expectation of privacy?  You could argue either way, though there is a clear-cut answer.


The term “legitimate expectation of privacy” comes from the U.S. Supreme Court’s interpretation of the Fourth Amendment prohibition on improper search and seizure.  There is a huge volume of writing about this phrase.  These words have a specialized meaning.  Using these words in the ruling incorporates by reference a whole lotta case law.  This makes “fair warning” even more of a fiction.


The abominable and detestable crime against nature


How could a law-abiding citizen found out what the heck this means other than from statutes and case law?


Maybe you could find out from the Bible.  If a majority of people in your jurisdiction know what the phrase means, then you’re on safe ground and there’s fair warning.


Shortly after the Vietnam War, Ho Chi Minh City implemented a law against “acting like an American”.  Would the people in the city know what that means?  If they do, it’s not unduly vague.  It meant “using prostitutes” and dressing immodestly.


The crime of ogling


This was meant to be a serious assignment.  It’s hard to write down what ogling means exactly.  The lesson of the assignment is that it’s hard to tell people what’s prohibited.  It’s hard to write statutes!  We should have some respect for legislators, because what they do is tough.


Words are the most important tool you’ll use as a lawyer.


Spell stuff right!


Some people gave a dictionary definition of ogling.


What period of time constitutes “looking fixedly”?  What do we mean by “flirtatious”?


What would it mean to look at someone in a “lustful manner”?  How can you observe lustfulness?  Does it have something to do with facial expressions?  If so, should we include the facial expressions in the statute?


What do we mean by “unprivileged”?  Does it mean without consent?


What about giving examples?  The examples would have to be specific and exhaustive.  Also, if you say “ogling includes” it does not mean that you have an exhaustive definition.  There might be other things besides the ones you’ve written down that you’re not supposed to do.


How about a full-scale statute?  Note that it’s helpful to include in the statute why exactly the legislature was motivated to create that statute.


Maybe we need to require that someone observes the ogling, but not necessarily the person who gets ogled.  Maybe it shouldn’t be necessary to have anyone see at all (except as far as detection of the offense).


Here’s part of the problem: if you put in a length of time, that’s precise, but it also allows for a loophole.  If you’re told that you can’t look at someone’s chest for more than 12 seconds, you’ll look at it for 11 seconds and be safe.  The legislature has a strong incentive to come up with something that’s not totally precise so that there isn’t a loophole for non-law-abiding folks.


Paradoxically, we don’t want to give too much notice, because it will open up a loophole to bad behavior that falls just short of what’s forbidden.


It’s hard to come up with a statute that will work!  It’s hard to avoid vagueness and overbreadth!


Next time, we will look at the basic components of a crime.


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